Latin American Bloghttps://www.latinolawblog.com
Legal Issues Affecting the Hispanic Latino Market & Hispanic Latino CompaniesThu, 16 Nov 2017 00:04:20 +0000en-UShourly1https://wordpress.org/?v=4.7.8Subscribe with My Yahoo!Subscribe with NewsGatorSubscribe with My AOLSubscribe with BloglinesSubscribe with NetvibesSubscribe with GoogleSubscribe with PageflakesSubscribe with PlusmoSubscribe with The Free DictionarySubscribe with Bitty BrowserSubscribe with NewsAlloySubscribe with Live.comSubscribe with Excite MIXSubscribe with Attensa for OutlookSubscribe with WebwagSubscribe with Podcast ReadySubscribe with FlurrySubscribe with WikioSubscribe with Daily RotationThe Latest Turn in the Travel Ban Roadhttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/E3VnMm11Isk/
https://www.latinolawblog.com/2017/11/articles/immigration/travel-ban-bona-fide-ties/#respondWed, 15 Nov 2017 19:40:55 +0000https://www.latinolawblog.com/?p=1781Continue Reading]]>A few weeks ago, we wrote about the latest district court decisions involving the President’s so-called travel ban, in which a Hawaii court fully enjoined the proclamation, while a Maryland court allowed it to stand as to travelers without bona fide ties to the U.S. The Hawaii court’s order meant that Travel Ban 3.0 was put on hold.

The New Ruling

On November 13, a panel of the Ninth Circuit Court of Appeals partially and temporarily overturned the Hawaii court’s ruling. It granted a partial stay, agreeing with the Maryland court that, for now at least, the ban can go into effect as to travelers from Chad, Iran, Libya, Somalia, Syria and Yemen without bona fide connections to the U.S.

What It Means

The new ruling applies the bona fide test articulated by the Supreme Court last summer. It means that travelers from the six countries who have a “close familial relationship” with a person in the U.S. may travel here. Such a relationship includes grandparents, grandchildren, brothers- and sisters-in-law, aunts and uncles, nieces and nephews, and cousins. The ruling also permits those who have a relationship with an entity in the U.S. that is formal, documented and formed in the ordinary course of business to travel here. This includes students and individuals with valid job offers, but not tourists or patients seeking medical care.

Practical Take-Away

As a practical matter, a large number – likely most – visa applicants from these countries will still qualify to come to the U.S., as they will have bona fide ties here. However, it bears recalling that the government still retains the authority to reject visas or entry on a case-by-case basis and anecdotal data indicate that more such rejections have taken place in the past year than in prior years.

What’s Next

As noted last month, we are nowhere near the end of this legal odyssey. The Fourth Circuit has yet to review the Maryland court’s order, and the Ninth Circuit’s new ruling is only a temporary stay, pending a more considered decision down the road. Oral arguments in the Ninth Circuit are scheduled for December 6, and in the Fourth Circuit on December 8. And virtually everyone expects this case to end up back in the Supreme Court sometime in the next year. So, there are more twists and turns in the road ahead. Stay tuned.

]]>https://www.latinolawblog.com/2017/11/articles/immigration/travel-ban-bona-fide-ties/feed/0https://www.latinolawblog.com/2017/11/articles/immigration/travel-ban-bona-fide-ties/In January, Will You be Able to Board Your Domestic Flight With Your Current Driver’s License?http://feeds.lexblog.com/~r/LatinAmericanBlog/~3/AeA__P7eFvg/
https://www.latinolawblog.com/2017/11/articles/other/real-id-act/#respondFri, 10 Nov 2017 18:01:44 +0000https://www.latinolawblog.com/?p=1769Continue Reading]]>BACKGROUND

In 2005, Congress passed the Real ID Act, enacting national standards for obtaining state driver’s licenses and I.D. cards. These federally mandated standards require states to use enhanced security features and identification procedures, and to review documentary evidence of legal status, before issuing a driver’s license or identity document. The Act requires that only individuals with a Real-ID-compliant identity document may (1) access federal facilities; (2) enter nuclear power plants; or (3) board commercial aircrafts for domestic flights.

WHAT DOES THE REAL ID DRIVERS LICENSE LOOK LIKE?

The new Real-ID-compliant driver’s licenses and identity documents have a gold star inside a gold circle in the upper right hand corner of the document. States are also required to utilize photos that are compatible with facial recognition software as well as additional measures to prevent fraudulent production of a driver’s license.

IS YOUR STATE REAL ID COMPLIANT?

As of November 7, 2017, 26 states are in compliance, 17 have received a one year extension to October 10, 2018, and 7 states are still under review (including New York, Illinois, and Michigan). Unless your driver’s license is from one of the 7 states still under review, you have additional time to obtain a compliant ID.

Congress established an initial deadline of 2007 for states to comply with the different phases of implementation. However, the Department of Homeland Security (DHS) has granted and continues to grant extensions to many states that are actively in the process of becoming compliant.

Here is the current state of play for residents of three types of states:

Residents of States that are Compliant

Residents of states that have already complied with Real ID have until October 1, 2020 to obtain a Real-ID-compliant ID from their state’s issuing agency and may use their non-compliant ID until then, or until it expires.

Residents of Non-Compliant States that Have Received Extensions

Residents of states that have received extensions may continue to use their non-compliant IDs until the extension expires (current extensions will last until October 10, 2018), the state receives another extension, or DHS certifies that the state has come into compliance. Regardless, residents of these states will need to obtain a compliant ID by October 1, 2020 at the latest.

Residents of Non-Compliant States that Have not Received Extensions

Residents of states that have not complied and have not received extensions will not be able to use their non-compliant IDs to enter federal agencies or board aircraft as of January 22, 2018. They will need to utilize a different form of identification (such as a passport) for such purposes.

DOCUMENTS NEEDED TO OBTAIN A REAL ID COMPLIANT DRIVERS LICENSE

As part of the congressionally mandated protocols, states are required to demand and inspect additional documents to verify identity. Here is a list of documents you will need when you apply for a Real ID compliant driver’s license:

ID such as your current driver’s license or passport. In some cases, a birth certificate will be requested.

Proof of all name changes – certified copy of name change, marriage, divorce, etc.

Social Security Card, W-2 or 1099 with social security number

Proof of residency in the state and your current address – utility bills, etc.

State DMV application form

Please consult with your state DMV for specific guidance.

INDIVIDUALS THAT DO NOT HAVE LEGAL STATUS IN THE U.S.

Individuals that do not have legal status in the U.S. or a valid social security number most likely will still be able to travel domestically using their foreign passport as long as the passport validity has not expired.

RECOMMENDATION

Given the looming deadline in October 2020 for all Americans to have a driver’s license that is Real ID compliant, we recommend applying for one as soon as your state begins issuing them. Do not wait until 2020 to do so as the wait times and lines.

*Andrea Ramos is an extern in the Corporate Practice Group at Sheppard Mullin.

Graphic Attribution: Department of Homeland Security

]]>https://www.latinolawblog.com/2017/11/articles/other/real-id-act/feed/0https://www.latinolawblog.com/2017/11/articles/other/real-id-act/Travel Ban: Déjà Vu All Over Again, Againhttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/cK3xI-1jC8c/
https://www.latinolawblog.com/2017/10/articles/immigration/travel-ban-deja-vu-eo3/#respondMon, 23 Oct 2017 21:44:07 +0000http://www.latinolawblog.com/?p=1764Continue Reading]]>On September 24, President Trump issued a “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” Most people know it better as Travel Ban 3.0 or EO3 (for “Executive Order #3”), the President’s third attempt to impose travel restrictions on nationals of certain countries who seek to enter the United States. If it feels like you’ve seen this movie before, that’s because you have.

The advent of EO3 has been quickly followed by one court effectively ending a lawsuit, and two others validating new lawsuits. The first was the Supreme Court’s decision on October 10 not to hear its pending case relating to the second travel ban order (“EO2”), because the order had been rendered moot by its own terms when it expired this fall. The second and third rulings both came down on October 17, when two district courts stopped EO3 from taking effect the next day.

All of this means that, for now, U.S. gates are open again to nationals of six of the eight countries – or at least as open as they have been in the recent past – but that may be temporary, and even with these rulings, travelers should remain wary. Ad hoc enforcement of the authority to bar entry has risen in the past year. In addition, two of the countries listed in EO3 – N. Korea and Venezuela – are not covered by the court orders. EO3’s narrower restrictions regarding these two countries remain in place.

What EO3 Says

The President’s Proclamation departed in several ways from the provisions of his earlier executive orders. First, the roster of affected countries has changed. It once again applies to six majority-Muslim countries, but this time it has added Chad and removed Sudan, in addition to listing Iran, Libya, Syria, Yemen and Somalia. Moreover, this time the President has added two non-majority-Muslim countries to the list: North Korea and Venezuela, though the number of North Korean travelers to the United States is negligible and EO3 only applies to a small number of Venezuelan government officials and their families, not the general population.

Second, EO3 contains more robust findings, spelling out in greater detail the purported detriment to national security resulting from travel by nationals of the listed countries. It documents the failures of the listed governments to cooperate sufficiently in providing security information to assist the U.S. in vetting the countries’ nationals who seek to enter the U.S.

What the District Courts Said

On October 17, Judge Derrick Watson in the District of Hawaii issued an opinion finding EO3 in violation of the Immigration and Nationality Act (“INA”), and ordering a stop to its implementation. Judge Watson, who had previously enjoined EO2, first ruled that EO3 (like its predecessor) “lacks sufficient findings” that the entry of individuals from the affected countries is detrimental to the U.S. and that the findings it does contain do not logically justify the restrictions contained in EO3. Second, he ruled that the proclamation violates the section of the INA that prohibits discrimination on the basis of nationality. As a result, Judge Watson issued a temporary restraining order prohibiting the Government from implementing EO3 as to the six Muslim-majority countries.

Later that same day, Judge Chuang in the District of Maryland issued his own opinion in a different challenge to EO3. Unlike Judge Watson, he found that EO3 violates not only the INA, but also the Constitution’s Establishment Clause, which prohibits discrimination based on religion. Judge Chuang, himself a former Deputy General Counsel of the Department of Homeland Security, found the same violation of the anti-discrimination clause of the INA that Judge Watson had highlighted. However, he went on to find that EO3 is rooted in the same unconstitutional intention to ban Muslims that the President has repeatedly expressed both during the Presidential campaign and after, and which courts found to be behind EO1 and EO2.

What Does It All Mean?

If your head is spinning from either the intricate legal dance taking place from coast to coast or the feeling that you’ve already seen this movie, you are not be alone. But here are the key takeaways from the latest developments:

For now, EO3 is on hold. Judge Watson’s order, which is broader than Judge Chuang’s, is in effect. The travel ban as to Chad, Iran, Libya, Syria, Yemen and Somalia is on hold. Its narrower provisions as to North Korea and Venezuela are not.

We’ve only just begun. Round 3 of the travel ban wars is just getting started. Both rulings are likely to be appealed – to the Ninth and Fourth Circuits respectively, each of which has previously ruled against EO2. Whichever way the appellate courts rule, this case is likely headed to the Supreme Court, and this time the Court will have to address the merits of the issues, after avoiding full engagement with EO2. That should happen within the year.

While EO3 remains in place as to Venezuela, it only applies to very few people. Only officials of 5 named ministries in the government of Venezuela, and their families, are covered by the order.

Nationals of the listed Muslim-majority countries should still exercise caution in traveling to the U.S. U.S. border authorities have stepped up their screening of travelers to the U.S. in the past year, particularly from countries in this region. The U.S. has the authority, on an individual ad hoc basis, to turn travelers away, even if the travel ban has been enjoined. While rare, that has occurred in a small minority of cases. So, travelers should be cautious, and should be prepared for the unexpected, unlikely though it may be.

In the meantime, as we watch the courts grapple with yet another travel ban, we will continue to experience déjà vu. Again.

]]>https://www.latinolawblog.com/2017/10/articles/immigration/travel-ban-deja-vu-eo3/feed/0https://www.latinolawblog.com/2017/10/articles/immigration/travel-ban-deja-vu-eo3/The Rescission of DACA – A Quick Overview of How This Impacts Your DACA Employeeshttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/ue5XHYMpn1E/
https://www.latinolawblog.com/2017/09/articles/immigration/rescission-daca-status/#respondThu, 07 Sep 2017 16:20:00 +0000http://www.latinolawblog.com/?p=1758Continue Reading]]>USCIS announced on September 5, 2017, that they are phasing in a rescission of the Deferred Action for Childhood Arrivals program (DACA). The DACA program began in 2012 and granted temporary status and work permits to the “dreamers” who came here as children without visas. Here’s a summary of how the new rules will impact your employees that have DACA status:

First-Time DACA Requests: All initial requests for DACA status will be rejected. However, as a practical matter, 99% of the people who qualified for DACA presumably have already filed previously.

Current DACA and EAD holders: Those currently holding DACA status and that have employment authorization documents (EAD’s) can continue to use them through the end of their EAD validity. Their employer will not need to prematurely terminate them. If Congress extends DACA before their employment authorization documents EAD expires, then they could re-file for a new work permit and upon issuance of the new EAD, then have their I-9 re-verified.

Renewals: For those whose DACA and EAD will expire in the next 6 months — on or before March 5, 2018 — they can apply now to renew their DACA and EAD – presumably for 2 years validity however the Administration has not confirmed that it will be for 2 years. The deadline for them to file is October 5, 2017. No renewal applications will be accepted after October 5, 2017.

Those Not Eligible for Renewals: Those who currently have EAD’s that will expire on March 6, 2018 or later will not be able to file renewal applications. But their current EAD’s will be good until they expire.

Sunset: DACA will completely sunset by March 4, 2020, and much sooner for most DACA holders.

Travel: For those who have an approved advance parole travel document, they may use it, but must of course re-enter the U.S. before the expiration date. For those who have pending applications for an advance parole travel document, they will be cancelled and the filing fee refunded.

No Automatic EAD Extensions: As in the past, there is no automatic extension of a DACA EAD –which has the code “c (33)” on it. The employee will therefore need to show their employer a new EAD before the expiration of their current EAD in order to keep working.

The notice says that the process will be carried out “consistent with Congressional priorities and objectives outlined in section 102 of the Trade Priorities and Accountability Act,” which is the TPA fast-track legislation passed in 2015. This is a welcome indication that the Administration is proceeding, at least for now, in the manner that Congress contemplates. While President Trump could change course, there is for now at least reason to believe that the negotiation will proceed in the manner typical of FTA negotiations, with Congressional notification and ratification of the final agreement, rather than a Presidential assertion of unilateral authority to make revisions under the Trade Act of 1974 or the Trade Expansion Act of 1962.

USTR Lighthizer’s notice states that the objective of the renegotiation is “to support higher-paying jobs in the United States” and “improv[e] U.S. opportunities under NAFTA.”

It is interesting that NAFTA rules of origin (the rules that determine which goods qualify for duty-free NAFTA treatment) are not expressly mentioned given that Secretary Ross and others have criticized them repeatedly in recent weeks. The letter is so general in its wording, however, that it does not exclude any existing NAFTA provisions from negotiation. Dispute resolution and currency manipulation are two other topics that Lighthizer has told Congress will be negotiated but they also are not mentioned explicitly in the notice. The overall impression is that the Administration is keeping its options wide open for now. We expect NAFTA revised rules of origin to be discussed.

Kevin McAleenan, President Trump’s nominee to be the new Commissioner of Customs and Border Protection (CBP), said on Wednesday that CBP wants to be an active participant in the NAFTA renegotiation. He cited inequities in the de minimis rules allowing duty-free entry without formal paperwork as an area where CBP can contribute to the negotiations. In light of this, some observers believe Lighthizer’s reference to “customs procedures” could be aimed at trying to grow U.S. exports under NAFTA by making it easier for small U.S. companies to qualify for duty-free treatment of their exports without the compliance burden that large firms address by hiring lawyers and trade specialists to manage their NAFTA compliance. A 2015 Thomson Reuters Global Trade Management survey of small business owners found that complying with rules of origin and other regulations was the principal difficulty that they faced in exporting their products.

On Thursday morning USTR Lighthizer confirmed that the Administration hopes to renegotiate NAFTA, rather than scrap it altogether. He also said: “I would note that many of these negotiations will be bilateral and many of the issues are bilateral, but our hope is that we will end up with a structure that is similar to what we have now. If that proves to be impossible, we will move in another direction.”This is a back-handed way of confirming that the Administration will indeed begin on the basis of a new trilateral agreement.

USTR Lighthizer also said he hopes that the softwood lumber dispute with Canada and the sugar dispute with Mexico can be amicably resolved before NAFTA negotiations begin. The 90 days end in mid-August. The earliest negotiations can begin is on August 16th.

Congressional reaction to Lighthizer’s notice has been mixed. Ways and Means Chairman Brady said: “The United States has a tremendous advantage through our NAFTA supply chain, which allows us to partner with Canada and Mexico to create an integrated production base that improves our competitive edge against China and other competitors,” but he acknowledged the need for modernization of NAFTA.

Senator Wyden called the notice “disappointingly vague,” but added that he was pleased Lighthizer had told him that elimination of NAFTA Chapter 19 on AD/CVD dispute resolution would be a priority in the discussions.

Democrats who support President Trump’s protectionist position were more critical. Representatives Neal and Pascrell called the notice disappointing “for those of us who believe that U.S. trade policy — and NAFTA — need fundamental reform.”Representative DeFazio said he was disappointed to hear the White House is looking to transfer parts of TPP to the new NAFTA.

Democrats see a friend in USTR Lighthizer but some of them feel that he is not really the one calling the shots. They believe Commerce Secretary Ross is still making the key decisions on trade policy. If that is true, it could result in a somewhat less protectionist revision of NAFTA, but it would not reduce the risk of rule of origin changes.

Under the TPA fast track legislation, the USTR is required to publish more-detailed objectives at least 30 days before formal negotiations begin. These should be available, therefore, by mid-July. Democrats are already using this to press USTR Lighthizer to provide greater transparency in the NAFTA renegotiations.

Mexican Foreign Minister Luis Videgaray said yesterday that “We are willing and we are prepared to start the constructive negotiation once the 90-day period goes by.”

Canadian Foreign Minister Freeland likewise confirmed Canada’s willingness to renegotiate NAFTA, citing modernization in the labor and environment chapters as two areas Canada has in mind. She suggested Canada would draw on its experience with how these areas were handled in the Canada-EU Trade Agreement (CETA). Freeland will be in Mexico next week to discuss NAFTA renegotiation. She says she is in very close contact with Mexican Economy Minister Guajardo and Foreign Minister Videgaray, who are leading the NAFTA talks for Mexico. She also said again that Canada wants a trilateral agreement with all three parties at the table.

]]>https://www.latinolawblog.com/2017/05/articles/cross-border-transactions/nafta-renegotiation/feed/0https://www.latinolawblog.com/2017/05/articles/cross-border-transactions/nafta-renegotiation/Buy American and Hire American – New Executive Order Promises to Put American Workers First, But Practical Impacts Remain Unclearhttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/eTkYp5F2Dqw/
https://www.latinolawblog.com/2017/04/articles/immigration/buy-american-and-hire-american-new-executive-order-promises-to-put-american-workers-first-but-practical-impacts-remain-unclear/#respondThu, 20 Apr 2017 19:00:02 +0000http://www.latinolawblog.com/?p=1747Continue Reading]]>On April 18, President Trump signed a new executive order (EO) at a ceremony in Kenosha, Wisconsin. The EO is entitled “Buy American and Hire American” and focuses on these two themes, with the President’s stated goal of ending the “theft of American prosperity” by focusing on American workers and products. While the details of how the new EO will be applied will undoubtedly take months to implement (pending numerous agency-level reviews), companies doing business with the federal government, or with an interest in foreign high-skill workers, should be aware of these new developments so that they can prepare for the adjustments they will need to make in the near future, as the President’s efforts to put American workers first take shape.

Buy American

The “Buy American” portion of the EO sets the already obvious Trump Administration policy to maximize the use of goods, products, and materials produced in the U.S. The stated end goals are to “promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial base.” These kinds of objectives have long been a priority for the federal government dating back to the Great Depression, but the new EO re-emphasizes these objectives, calling particular attention to the various “Buy American” laws that currently govern federal spending.

As an initial matter, there is not one, single “Buy American” statute. There are numerous statutes for numerous agencies that impose unique purchasing requirements for that agency and for specific types of products. Some Buy American requirements merely impose an evaluation preference for domestically manufactured products, while other Buy American requirements require the delivery of products that are wholly (both the product and the component materials) manufactured in the U.S. Some Buy American requirements have numerous exceptions available, while others have very few if any – including exceptions relating to the purchase of commercially-available off-the-shelf products. Some Buy American requirements are expressly waived under international free trade agreements (FTAs), which grant our trading partners some degree of reciprocity in the U.S. and foreign public procurement markets. The EO acknowledges that there are multiple, different statutory requirements, but it nonetheless casts all “Buy American” requirements broadly, demanding that agencies take greater steps to ensure that U.S.-made products (and, in turn, U.S. industry) are given the maximum practicable priority over foreign alternatives.

Beyond setting forth the broad policy announcements described above, the EO does little that immediately affects government contractors. Specifically, the EO includes the following directives:

Every agency shall “scrupulously” monitor, enforce, and comply with Buy American laws, to the extent they are applicable (an objective that, frankly, should already be happening under existing laws);

Agencies shall minimize the use of Buy American waivers, ensuring that public interest waivers “should be construed to ensure the maximum utilization of goods, products, and materials produced in the United States” and ensuring that agency heads “take appropriate account of whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods”;

Within 60 days (by approximately June 19, 2017), the key regulators shall issue guidance (which may well include updates to the regulations) to assist the agencies in better implementing the Administration’s Buy American priorities;

Within 150 days (by approximately September 18, 2017):

Agencies shall:

Assess the ways in which the agencies monitor, enforce, and implement compliance with Buy American requirements;

Assess the use of waivers, including the impacts that such waivers may have on domestic jobs and manufacturing; and

Develop policies that ensure government procurements and grants maximize the use of materials sourced from or manufactured in the U.S.;

The Secretary of Commerce and the U.S. Trade Representative shall also assess the impacts of various free trade agreements on the operation of the various Buy American laws (presumably as a lead-in to potential re-negotiation of these international agreements);

Within 220 days (by November 15, 2017), the key regulators shall submit a report to the President, reporting on some of the various issues identified above, and making recommendations on how to “strengthen implementation of Buy American Laws,” with annual reports recurring through at least 2020.

The practical impact of this new EO remains to be seen, as many of these requirements will need to be implemented through updated regulations and agency memoranda (which are likely to take longer than 60 days to materialize, particularly if the regulations are subject to a notice and comment period under the Administrative Procedure Act). Still, the reality is that nearly all government contracts and grants already have some type of “Buy American” requirement included in the agreement. As such, companies are already “on the hook” for complying with the existing country of origin restrictions, including exceptions available under existing FTAs. The EO contains a provision indicating that it should not be “construed to impair or otherwise affect … existing rights or obligations under international agreements.” As such, until things are actually changed, it does not seem that much has changed. Nonetheless, it seems likely that the new EO will create a fair level of anxiety amongst government purchasing personnel, and many will feel the need to scrutinize more closely the country of origin requirements under existing contracts. Hopefully, cooler heads will prevail and government personnel will understand that until the regulations are actually updated, and until a contract or grant is actually updated to include the new Buy American requirements, nothing has actually changed. For industry, this means that talking through these issues with your customer may be necessary to help everyone understand the difference between the actual, existing Buy American requirements and what people reflexively think they should be (or might be in the future).

Hire American

The “Hire American” portion of the EO sets forth a broad policy to support its theme, but focuses primarily on the H-1B high skilled temporary foreign worker program. This program, which has been in existence since the early 1990s, has been the subject of increasing criticism in recent years, including from the President on the campaign trail. He has promised to significantly reform the program, and this EO begins that process. The EO first sets forth that it is the Administration’s policy to “rigorously enforce and administer the laws governing entry” of foreign workers into the U.S., citing a statutory provision (8 U.S.C. 1182(a)(5)) that requires, among other things, the Secretary of Labor to certify that there are not sufficient American workers to perform the work that an applicant for admission seeks to perform. This statute actually refers to matters involving sponsorship of permanent residency through labor certification so it remains to be seen how the Administration will apply this to non-immigrant visas without Congressional legislative reform. However, it is nonetheless a clear signal that the Trump Administration intends to ramp up the Department of Labor’s role in regulating, auditing and enforcing this law. The EO goes on to require the Departments of Labor, Justice, Homeland Security and State to propose new rules and guidance to crack down on fraud and abuse in our immigration system in order to protect workers in the U.S. Specifically, it calls on those four departments to develop changes to the H-1B program so that visas are awarded “to the most-skilled or highest-paid” applicants.

Unlike the “Buy American” portion of the EO, the “Hire American” portion does not set a timeline for review and study, but simply directs that the Order be executed “as soon as practicable.” Senior Administration officials have signaled that agencies are ready to move quickly with some of these changes, while others will take time. Some measures, such as stepped-up enforcement by the Department of Labor, could happen within weeks or months, while others, such as changes to the H-1B application process would not take effect before next spring’s H-1B application season, at the earliest.

According to the Government, about 80 percent of H-1B workers are paid less than the relevant median wage in their fields. In order to counteract this alleged undercutting of American workers’ pay, the EO presages changes that Administration officials have described as “a total transformation of the H-1B program.” At the signing ceremony, the President stated that the driving principle behind his initiative is that employers should hire “American workers first.”

The White House has conceded that not all changes it seeks could be accomplished by the Administration alone. It envisions some administrative changes, such as raising visa application fees, raising the wage scale to reduce the undercutting of Americans’ pay levels, and more vigorous enforcement of the rules by the Departments of Labor and Justice. It is also considering changing the lottery system to give foreigners with U.S. master’s degrees a leg up.

In fact, U.S. Citizenship and Immigration Services (USCIS) recently announced that it would view a Level 1 wage for an H-1B position in the IT industry as incompatible with the definition of “specialty occupation.” This alone will have an immediate impact on certain H-1B wages.

By contrast, any changes to the quotas on the issuance of H-1B visas (currently 20,000 exclusively for those with Masters degrees or higher and 65,000 for all others) would have to be implemented by legislation. A number of bills have already been introduced in the 115th Congress to address and reform the H-1B program. Most would either raise the required wage for H-1B recipients or replace the random lottery with a merit-based system, or both. These ideas enjoy bipartisan support.

It is also Congress that defined an H-1B “specialty occupation” as a position requiring the a minimum of a bachelor’s degree and the theoretical and practical application of highly specialized knowledge. 8 USC 1184 (i)(1). Therefore, limiting the scope further to only those with advanced degrees or certain occupations may require legislative reform. However, the executive branch could promulgate new regulations redefining “highly specialized knowledge” to give weight to certain degrees and occupations. USCIS has taken a similar approach in the past with regard to “advanced knowledge” in the context of the L-1B (employee transfer) visa classification.

First, last or in between, American workers and industry could be impacted. Companies should keep a close eye on this developing situation. We will continue to monitor developments at the White House, the agencies and on the Hill, and will update you as appropriate.

]]>https://www.latinolawblog.com/2017/04/articles/immigration/buy-american-and-hire-american-new-executive-order-promises-to-put-american-workers-first-but-practical-impacts-remain-unclear/feed/0https://www.latinolawblog.com/2017/04/articles/immigration/buy-american-and-hire-american-new-executive-order-promises-to-put-american-workers-first-but-practical-impacts-remain-unclear/New Tax Information Exchange Agreement Between the United States and Argentinahttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/VwnJVsG_OpU/
https://www.latinolawblog.com/2017/01/articles/tax/new-tax-information-exchange-agreement-between-the-united-states-and-argentina/#respondWed, 04 Jan 2017 17:46:39 +0000http://www.latinolawblog.com/?p=1745Continue Reading]]>The governments of Argentina and the United States signed on December 23rd, 2016, a new tax information exchange agreement (“TIEA”). Jack Lew, U.S. Treasury Secretary, stated that the TIEA will allow for important collaboration between the two countries’ tax enforcement efforts. The TIEA provides a legal framework for the reciprocal and automatic exchange of tax information, which will allow Argentina to (i) comply with the U.S. Foreign Account Tax Compliance Act, and (ii) obtain information about Argentinean taxpayers that hold undeclared assets in the United States.

The signature of the TIEA is one of the first policies to result from Argentina’s tax amnesty law. Mr. Alfonso Prat-Gay, who recently stepped down as Minister of Treasury and Finance of Argentina, reported that Argentinean taxpayers have declared about $90 billion U.S. dollars (equal to 17% of Argentina’s GDP) so far, with more than 235,000 affidavits filed with the AFIP (Argentina’s IRS). According to Mr. Prat-Gay, Argentina’s tax amnesty law has been a resounding success, exceeding the results obtained by other South American countries that have implemented similar policies.

Argentinean taxpayers had until December 31, 2016, to file an affidavit to declare undeclared assets. Taxpayers were exempt from penalties if the undeclared amounts were less than $20,000 U.S. dollars. For undeclared amounts between $20,001 U.S. dollars and $50,000 U.S. dollars, taxpayers would pay the AFIP a penalty of 5% of the undeclared amounts (increased to 10% for amounts exceeding $50,000 U.S. dollars). As of January 1, 2017, the penalty increased to 15% of the undeclared amounts. The tax amnesty ends by March 31, 2017. Taxpayers can pay the penalty in cash or buy different bonds offered by the Argentinean government. Tax payers who fail to take advantage of the amnesty risk criminal and civil charges for tax evasion.

]]>https://www.latinolawblog.com/2017/01/articles/tax/new-tax-information-exchange-agreement-between-the-united-states-and-argentina/feed/0https://www.latinolawblog.com/2017/01/articles/tax/new-tax-information-exchange-agreement-between-the-united-states-and-argentina/Congress Likely to Focus its Oversight Spotlight on the Private Sectorhttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/k2tVIUYmyAY/
https://www.latinolawblog.com/2016/12/articles/other/congress-likely-to-focus-its-oversight-spotlight-on-the-private-sector/#respondTue, 13 Dec 2016 17:29:21 +0000http://www.latinolawblog.com/?p=1741Continue Reading]]>In a recent article in Entrepreneur, Sheppard Mullin partner Jonathan Meyer, a former Senate counsel to Vice President Biden and Deputy General Counsel at the Department of Homeland Security, points out that Congressional oversight of companies is likely to increase in the next two years, and discusses some of the hottest topics it is likely to focus on. These include healthcare, financial reform and tax avoidance, cybersecurity and product safety, among others. Companies should keep an eye on Capitol Hill, and be ready for what might come their way.

]]>https://www.latinolawblog.com/2016/12/articles/other/congress-likely-to-focus-its-oversight-spotlight-on-the-private-sector/feed/0https://www.latinolawblog.com/2016/12/articles/other/congress-likely-to-focus-its-oversight-spotlight-on-the-private-sector/Negotiation By Tweet: The Uncertain Future of U.S.-Cuba Relationshttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/kXWTZ4bXj6s/
https://www.latinolawblog.com/2016/12/articles/sanctions/negotiation-by-tweet-the-uncertain-future-of-u-s-cuba-relations/#respondWed, 07 Dec 2016 23:30:46 +0000http://www.latinolawblog.com/?p=1739Continue Reading]]>After the announcement of Fidel Castro’s death on November 26, 2016, President Barack Obama sent a message to the Cuban people highlighting his administration’s efforts to improve relations between the United States and Cuba. “History will record and judge the enormous impact of this singular figure on the people and world around him…[T]he Cuban people must know that they have a friend and partner in the United States of America,” Obama said.

President-Elect Donald Trump took a different tack, tweeting simply, “Fidel Castro is dead!”

The following Monday, as the first U.S. direct commercial flight in over 50 years landed in Havana, Mr. Trump tweeted: “If Cuba is unwilling to make a better deal for the Cuban people, the Cuban/American people and the U.S. as a whole, I will terminate deal.” It is unclear what he means by the “deal.” President Obama’s relaxation of restrictions on Cuba is not part of a single deal. Rather, the President’s decision to increase engagement and shift policy toward the island nation has been implemented through a gradual series of Presidential Executive Orders, regulatory changes, and shifts in licensing policy.

Mr. Trump’s threat to terminate the “deal” might be read as a threat to reverse the steps the Obama administration has taken to ease travel and trade restrictions on Cuba. That threat has created a great deal of uncertainty for the future of U.S.-Cuba relations. During his campaign, Mr. Trump sent mixed signals about his approach on Cuba. In September 2015, Mr. Trump reportedly commented that “the concept of opening Cuba is fine.” His stance hardened closer to the election (as he fought for votes in the key electoral state of Florida), reportedly saying that he would close the newly opened U.S. Embassy in Havana and undo President Obama’s policies on Cuba.

Other influences may tend to harden Mr. Trump’s views further. His choice of Reince Priebus has a reputation as a Cuba hawk, as do influential members of the Republican Congressional delegation, including Marco Rubio and Ted Cruz. Mr. Trump’s choice to head the National Security Council, Michael Flynn, has written that he sees Cuba as a country “allied with” Radical Islamists in a war against the United States.

Theoretically, undoing President Obama’s efforts would be easy for the new Trump administration. There is no legal barrier to reversing most or all of the Obama administration’s Cuba initiatives.

On the other hand, it is somewhat possible that the businessman in President-elect Trump could influence his views on Cuba, especially considering that his own organization reportedly investigated business opportunities in the Cuban hospitality sector as recently as six months ago. Since hospitality is one of the major sectors benefitting from Obama administration’s Cuba policies, it might provide fertile ground for further opening of the relationship.

There may be a possible approach lying between normalization and retrenchment. As noted by the US-Cuba Trade and Economic Council, Mr. Trump may choose to require that the Cuban government meet certain requirements as conditions to continuing the existing initiatives. Such conditions might include concrete steps on human rights. At the same time, enforcement of existing restrictions (which are many) could be beefed up through allocations to the chronically underfunded and understaffed Office of Foreign Assets Control within the U.S. Department of Treasury. But negotiating this middle path will be delicate. The Cuban leadership is extremely sensitive to criticism of its human rights record, but there are small signs of movement. For example, when President Obama visited the island in March 2016, he met personally with dissidents critical of both Castro and the United States. And Fox News reported after Fidel Castro’s death that Raul Castro’s regime has moved away from the worst abuses, including executions of dissidents and long-term sentences of political prisoners. But according to the same report, under the Raoul Castro regime, harassment and short-term detention reportedly continues to be used to disrupt the activities of dissident groups. Navigating those issues will place high demands on the diplomatic skills of Mr. Trump’s administration.

According to a recent Pew Research poll, there is broad approval across party lines for reestablishing diplomatic relations with Cuba and ending the embargo. Many sectors of the American business community would likely oppose rolling back President Obama’s changes, which have broken down economic and social barriers between the United States and Cuba. Travel to Cuba is immensely popular. Many companies have invested millions to enter the Cuban market, with the U.S. government’s authorization. As White House Press Secretary Josh Earnest argued, “unrolling” Obama’s policy is “just not as simple as one tweet might make it seem.” But this may not be enough to sway Mr. Trump.

For American businesses exploring opportunities in Cuba, it is important to be mindful that the next administration is likely to freeze any expansion of Cuba initiatives, at least while the new President sorts out his priorities. In the best case, existing policies might be made contingent on Cuba meeting certain human rights and other objectives important to the new President. Some of the more permissive Obama administration policies could be rescinded, and there may be increased enforcement by OFAC of the restrictions that remain. We also expect that after Inauguration Day, January 20, 2017, work on pending OFAC license applications is likely to be frozen until a clear agenda is set. While the uncertainty is unsettling, we will continue to look to a future, as President Obama stated, “in which the relationship between our two countries is defined not by our differences but by the many things that we share as neighbors and friends – bonds of family, culture, commerce, and common humanity.”

]]>https://www.latinolawblog.com/2016/12/articles/sanctions/negotiation-by-tweet-the-uncertain-future-of-u-s-cuba-relations/feed/0https://www.latinolawblog.com/2016/12/articles/sanctions/negotiation-by-tweet-the-uncertain-future-of-u-s-cuba-relations/Obama’s Not Slowing Down On Cuba: New Steps Forward Open Doors (and Humidors!) for Collaborationhttp://feeds.lexblog.com/~r/LatinAmericanBlog/~3/JZ9icomksJc/
https://www.latinolawblog.com/2016/11/articles/export-controls/obamas-not-slowing-down-on-cuba-new-steps-forward-open-doors-and-humidors-for-collaboration/#respondTue, 29 Nov 2016 00:24:33 +0000http://www.latinolawblog.com/?p=1737Continue Reading]]>With fewer than 100 days left in office, President Obama is not slowing down on his efforts to normalize relations between the United States and Cuba. Today, several changes to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR) go into effect. Those changes build on the plan President Obama laid out in December 2014 to increase the means for Americans and Cubans to collaborate in business, education, travel, and humanitarian work. The amendments will strengthen the ties between the two countries, stimulate Cuba’s private sector, create commercial opportunities for both the American and Cuban people, and potentially improve the lives of many Cubans. U.S. companies looking to expand into Cuba should review these changes carefully to identify and develop strategies for growth.

We have included some highlights from the updated regulations below that could significantly impact your business (or may prompt you to create a new one!). For the full CACR amendments, click here. For the full EAR amendments, click here.

All Industries

All Contingent Contracts Authorized. The U.S. Treasury Department, Office of Foreign Assets Control (OFAC) expanded authorization for U.S. companies and individuals to enter into all contingent contracts in Cuba. Prior to today’s changes, U.S. persons could only enter into executory contracts related to goods for export from the United States to Cuba. Under the amended regulations, U.S. persons may enter into any contract with Cuba or Cuban persons, so long as the contract is contingent on obtaining authorization from U.S. regulators for any transactions currently prohibited by the U.S. embargo on Cuba.This is a big deal. The change eases the burden on U.S. companies looking to develop, negotiate, and finalize business opportunities in Cuba for goods, services, or a combination of both.

Increased Exports of Goods from United States to Cuba. OFAC clarified the authorization enabling exports and reexports involving Cuba. The U.S. Department of Commerce Bureau of Industry and Security (BIS) will generally authorize the export of consumer goods, including goods sold online.This change is key for the development and growth of e-commerce in Cuba. The change will also allow U.S. companies in e-commerce to expand their consumer base and further drive the development of Cuba’s internet accessibility.

Aviation

Security and Safety-related Services in Cuba and to Cubans. U.S. companies and individuals are now authorized to provide a wide array of services aimed at promoting safety in civil aviation and the safe operation of commercial aircraft to Cuba and Cuban individuals and companies. For American aviation companies, as more and more travel increases between the two countries, these changes will greatly expand economic opportunities in Cuba’s burgeoning aviation industry.

Energy and Construction

Work on Cuban Infrastructure. U.S. companies and individuals are now authorized to provide services to develop, repair, maintain, and enhance infrastructure in Cuba. Under the regulations, “infrastructure” is defined broadly to include systems and assets used to provide the Cuban people with goods or services produced sectors such as public transportation, water and waste management, non-nuclear electricity generation, electricity distribution, hospitals, public housing, and primary and secondary schools. For American construction companies and contractors, this amendment potentially opens up a wide range of opportunities to provide construction-related services to assist in building and repairing Cuba’s infrastructure that will enable travel and commerce to increase between the United States and Cuba.

Healthcare, Medical Devices, and Pharma

Collaboration with Cuban Researchers and Medical Companies. U.S. companies and individuals may now engage in joint medical research projects with Cuban nationals. The authorization applies to both non-commercial and commercial research. For American labs, pharmaceutical companies, and universities, these changes create significant opportunities for collaboration to bring more Cuban scientists and researchers into medical and scientific innovation.

Travel

Monetary Limit on Cuban Imports While Traveling. The regulations no longer limit the value of goods that American travelers may bring back in their luggage when returning from Cuba! The agency press release specifically highlights the removal of value limits on Cuban-origin alcohol and tobacco products. In addition, travelers may purchase Cuban-origin goods outside of Cuba and bring the goods back to the United States in their luggage. In both cases, the products may only be for personal use, and of course, the normal duty and tax exemptions still apply. Formerly the limit was 400 USD of total goods, 100 of which could be alcohol or tobacco products or about the price of 3 of the best Cohibas. Now you can bring home a box!

As ever, we will continue to monitor updates on the breakdown of economic barriers between the United States and Cuba. As these historic changes occur, companies should always remain vigilant to stay compliant with the regulations while capitalizing on the newly created business opportunities.